State v. Lange

• Decision Date: 26 May 1977
• Docket Number: No. 570,570
• Citation: 255 N.W.2d 59
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Steven Robert LANGE, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 59

255 N.W.2d 59

STATE of North Dakota, Plaintiff and Appellee, v. Steven Robert LANGE, Defendant and Appellant.

Crim. No. 570.

Supreme Court of North Dakota.

May 26, 1977.

Syllabus by the Court

1. The lawfulness of a warrantless search depends upon whether it falls within one of the well-recognized and well-delineated exceptions to the warrant requirement.

2. A police officer who has been alerted to a possible DWI suspect by radio message and who observes the vehicle wandering in its lane of traffic need not wait for the driver to commit a traffic offense or become involved in an accident before he has probable cause to stop the vehicle.

3. In North Dakota there is a recognized distinction between reasonable cause sufficient to justify an officer stopping a motorist for investigation and reasonable cause for arresting such person on a charge of driving while under the influence of intoxicating liquor.

4. The prosecution is not required to demonstrate that a suspect had knowledge of his right to refuse consent to a search of his vehicle as a prerequisite to establishing the voluntariness of that consent.

5. The admissibility of evidence and the establishment of a proper "chain-of-custody" of evidence should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur.

Schuster, Ramlo, McGuire & Anderson, Fargo, for appellant; submitted on brief by Michael O. McGuire, Fargo.

Charles J. Gilje, State's Atty., Jamestown, for appellee.

PEDERSON, Justice.

This is an appeal by the defendant, Steven Robert Lange, from his conviction in the district court of Stutsman County of being in possession of a controlled substance with intent to deliver, in violation of § 19-03.1-23, NDCC. Ralph Grager, a codefendant at trial, was also convicted of the same charge, but has not appealed from his conviction.

This appeal presents two issues for our consideration: (1) whether the defendant was stopped and arrested and his vehicle searched without probable cause; (2) whether the trial court erred in not suppressing the controlled substance because of the State's failure to show a proper chain of custody of that evidence. We affirm.

Lange and Ralph Grager were arrested in the early evening of March 13, 1976, in Jamestown, North Dakota, by Jamestown Police Officer Roger Mayhew, who was responding to a call from the North Dakota Highway Patrol office which alerted him to a possible DWI ^* driver on Interstate Highway 94 proceeding toward Jamestown. Officer Mayhew spotted Lange's Pontiac within the city limits of Jamestown and stopped it after following the vehicle for five city blocks and observing it weaving in its lane of traffic.

Although Grager owned the vehicle, Lange was driving it when Officer Mayhew approached to request identification from the driver. As Lange produced his driver's license, Mayhew observed within the vehicle a small pipe in the ashtray and empty brown paper bags of the type dispensed by liquor stores.

After advising Lange of his Miranda rights, Mayhew asked him if he had been drinking. Lange replied that he had been drinking about half a bottle of wine. Mayhew subsequently requested identification of the passenger, Ralph Grager, advised him of his constitutional rights and, after locking the vehicle, transported both defendants to the Jamestown police station.

Apparently neither Lange nor Grager were told on what charge they were being arrested.

At the police station Mayhew informed his shift commander that he did not believe the defendants were sufficiently under the influence of alcohol to warrant a DWI charge, and the decision was reached to charge Lange with possession of an open container in a motor vehicle since Lange had admitted at the police station that there was half a bottle of wine under the driver's seat of the vehicle. At this point Lange was informed of this charge. Mayhew then asked the defendants for permission to search the vehicle. After initial consent was given, defendant Grager indicated some reluctance by asking, "What if we said no?", when the intended thorough nature of the search was explained to him. When Mayhew indicated that the vehicle would be impounded and searched anyway, the defendants consented to the search.

More than thirty minutes after the arrest, the vehicle was searched by Officer Mayhew and another Jamestown police officer with both defendants present. Discovered were numerous plastic bags containing small purple pills which were later identified as lysergic acid diethylamide, a controlled substance under § 19-03.1-23, NDCC. At police headquarters Mayhew placed this evidence, along with other material seized from the vehicle, in an evidence bag, tagged and initialed it, and turned it over to Sergeant Okerlund, a Jamestown police detective, who took over the investigation at that point. Lange was then informed that the charge was changed to possession of a controlled substance with intent to deliver. After questioning the defendants, Sergeant Okerlund placed the evidence bag in an evidence locker located in the Detective Bureau office in the Police Department, and placed the key in the desk of Detective Ardel Wolff, another Jamestown police detective with whom he shared the office.

Lange and Grager were tried to a jury, both were convicted, and both were given suspended sentences. Both filed notices of appeal but only Lange perfected his appeal.

FOURTH AMENDMENT ISSUE

Lange's initial contention is that Officer Mayhew stopped and arrested him without probable cause, and that the search of the vehicle incident to his arrest was an unreasonable search and seizure prohibited by the Fourth and Fourteenth Amendments to the United States Constitution and by Section 18 of the North Dakota Constitution. Since we are confronted here with a warrantless arrest and search, the lawfulness of the search depends upon whether it falls within one of the well-recognized and well-delineated exceptions to the warrant requirement. State v. Matthews, 216 N.W.2d 90 (N.D. 1974); State v. Gagnon, 207 N.W.2d 260 (N.D. 1973). While the State has argued persuasively that this search does come within the "consent" exception to the warrant requirement, State v. Metzner, 244 N.W.2d 215 (N.D. 1976), we deem it necessary to discuss the issue of probable cause for the arrest since the United States Supreme Court in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), has indicated that the legality of the arrest may be an important factor in determining whether the defendants' consent to search was freely and voluntarily given.

Lange argues that Officer Mayhew lacked sufficient probable cause to stop and arrest him because the officer was acting merely on information he had received from the Highway Patrol office, whose ultimate source was never identified nor produced at trial so that he could be subjected to cross-examination. In support of this argument Lange cites United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976), in which the federal district court held that "founded" suspicion or probable cause could not be based solely on receipt by the arresting officer of a radio dispatch requesting that the vehicle be stopped, without any personal knowledge of the factual foundation for the relayed message. The federal court stated "The fact that an officer does not have to have personal knowledge of the evidence supplying good cause for a stop before he can obey a direction to detain a person or a vehicle does not mean that the Government need not produce evidence at trial showing good cause to legitimate the detention when the legality of the stop is challenged. If the dispatcher himself had had founded suspicion, or if he had relied on information from a reliable informant who supplied him with adequate facts to establish founded suspicion, the dispatcher could properly have delegated the stopping function to Officer Holland." 536 F.2d at 1299.

Robinson is readily distinguishable from the instant case. Although the ultimate source of the message received by Officer Mayhew that a possible DWI driver was proceeding toward Jamestown on Interstate 94 was never identified, North Dakota Highway Patrolman Clinton Scott, who relayed the message to the Jamestown Police Department, was present and did testify at trial. More importantly, Officer Mayhew did not rely solely on the broadcasted message in stopping the defendants' vehicle, but did so only after following the vehicle for five blocks and personally observing the erratic driving pattern of the vehicle.

In Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971), the United States Supreme Court stated:

"This Court has held that where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). But the additional information acquired by the arresting officers must in some sense be corroborative of the informer's tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony."

In State v. Gagnon, 207 N.W.2d 260 (N.D. 1973), we held that where a vehicle and its tires were opened and searched by officers acting only on a mere suspicion that some law had been violated, the search was conducted without probable cause. This is not the situation in the instant case, in which a police officer, acting upon a radio message and his own observations of the suspect's erratic driving behavior, had reasonable cause for stopping the vehicle, after which he gained additional...